2316501 (Refugee) - [2025] ARTA 962

2316501 (REFUGEE) [2025] ARTA 962 (21 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2316501
Tribunal:General Member Genevieve Hamilton
Date:21 March 2025

Place:Melbourne
Decision:The Tribunal affirms the decision under review.
General Member G Hamilton
Statement made on 21 March 2025 at 12:18 pm
CATCHWORDS
REFUGEE – Protection Visa – Vietnam – race – ethnic group Vietnamese – religion – Catholic – participation in protest activities against the Vietnamese government – associated with Viet Tan – inconsistent evidence – not satisfied that the applicant faces a real risk of serious or significant harm – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 46, 65, 91, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
DBB16 v MIBP (2018) 260 FCR 447
MIAC v SZQRB [2013] FCAFC 33
MICMSMA v CBW20 [2021] FCAFC 63
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
BACKGROUND

This is a review of a decision refusing to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applied for the visa on 21 June 2017. The delegate refused to grant the visa on 28 September 2023. The decision was lodged with the review application.
The applicant arrived in Australian at Ashmore and Cartier Island reef by boat without a visa on [date] April 2013. On 14 October 2014 he was granted a short temporary Class UJ Subclass 499 (Humanitarian Stay) visa and associated a Class WE Subclass 050 Bridging Visa E. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime.
On 11 February 2016, the Minister lifted the s s46A(1) bar to permit the applicant, as an unauthorised maritime arrival, to apply for a further protection visa. The applicant lodged a protection visa application on 21 June 2017 (the first application).
Subsequent jurisprudence caused confusion about the validity of the application. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands during the period the applicant arrived, was not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)). The Department notified the applicant in June 2020 that his application was therefore invalid due to s91K because he had failed to leave Australia after his subclass 449 visa ceased. The bar was purportedly lifted, and the applicant invited to apply for another protection visa.
The applicant lodged another protection application on 6 July 2020 (the second application). That application was refused, and on review at the AAT the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2316501 (Refugee)

Details

AGLC: 2316501 (Refugee) [2025] ARTA 962
Case: [2025] ARTA 962
Decision Date: 21 March 2025

CaseChat Overview and Summary

In the matter of 2316501, the applicant from Vietnam sought a protection visa on the basis of race, ethnicity, and religious persecution. The applicant, who identifies as Vietnamese and Catholic, claimed to have faced persecution due to their participation in protest activities against the Vietnamese government and their association with the group Viet Tan. The matter was heard in the Administrative Appeals Tribunal. The central legal issue before the Tribunal was whether the applicant satisfied the criteria for a protection visa under the Migration Act 1958, specifically whether they faced a real risk of serious or significant harm if returned to Vietnam.

The Tribunal found that the applicant's evidence was inconsistent and could not be fully relied upon. Additionally, the Tribunal had concerns about the applicant's credibility, which further undermined their claims. The Tribunal was not satisfied that the applicant faced a real risk of serious or significant harm in Vietnam, based on the evidence presented. Therefore, the Tribunal concluded that the applicant did not meet the criteria for a protection visa as outlined in section 36(2) of the Migration Act.

As a result of this determination, the Tribunal affirmed the decision not to grant the applicant a protection visa. This decision was based on the Tribunal's assessment that the applicant did not meet the necessary criteria for refugee status, due to the inconsistencies and credibility issues with their claims. This outcome means the applicant's application for a protection visa has been rejected, and they remain subject to the original decision not to grant the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Accordingly, the applicant does not satisfy the criterion in s 36(2).DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Representative: Ms Kate HoangDate of hearing: 30 September 2024

Ratio Decidendi

Legal Principle Established

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